May 12, 2005

Jim Lindgren speculates on the outcome of the medical marijuana case (Raich):

[T]he Supreme Court is in a bind in Raich. Either the Court has to follow the Constitution and strike down federal drug regulation of intrastate noncommercial uses of marijuana (a controversial decision to follow the rule of law), or it has to expand Wickard radically, rendering the Commerce Clause almost (though not quite) a dead letter. Stated another way, the Court either has to expand its federalism jurisprudence slightly (eg, Lopez & Morrison, but in the controversial drug area), or it has to limit Lopez & Morrison to their facts by radically expanding federal power under the Commerce Clause. It can't stand still. Perhaps that is why the Court has been so slow to render an opinion.

Here's my theory on why the Court is taking so long with Raich. The Court is going to uphold the application of the Controlled Substances Act, even to the users of homegrown marijuana California wanted to accommodate. It really is not such a difficult question because Congress is trying to regulate a commodity down to the very smallest components of a market, including the home supplying of a product that would otherwise be bought on the market.

The Wickard case, which Lindgren would discount as "weakly reasoned," establishes this principle, albeit in the context of a farmer, and a farmer is engaged in a commercial enterprise, even if the wheat the government regulated never left his farm. Lopez and Morrison support drawing a line between commercial and noncommercial, however, and a homegrowing, home-user belongs on the noncommercial side of the line.

But if you take that route, how do you treat medicinal home-users differently from recreational home-users? You have to say medical home-users are not the sort of persons who would use the illegal market as a substitute for homegrowing, and that recreational users are. Considering all the people who have been punished for the possession of homegrown marijuana, I find it very difficult to accept a constitutional line drawn between these two motivations for using the drug.

The distinction is entirely based on a speculative theory about how people in different situations behave. Somehow medical users are the sort of people who would refrain from seeking out an illegal seller? They'd switch to a legal drug of some kind? Why? Why isn't it more likely that recreational users would limit themselves to homegrowing if it was completely legal, and would switch to a legal substance if they'd neglected to grow their own? Aren't medical patients more in need of the substance than recreational users? They are the ones with the special need for appetite stimulation. Recreational users can just substitute alcohol. And medical patients are more likely to have difficulty doing their own gardening and to require a different source.

(But it’s easy to grow marijuana, isn’t it? No one really needs to switch to buying, do they?)

I simply don't understand any distinction between medical and recreational users that is relevant to the constitutional point. (I realize medical patients are more sympathetic.) Both groups must be treated the same under the Constitution.

Assuming the Court has to find for the federal government in Raich, the reason it's taking so long -- I'm speculating -- is that it is very hard to explain the Wickard concept in a way that will satisfy the general public, which finds it so easy to sympathize with the suffering cancer patients on the other side. The Court is just hung up crafting and recrafting its labyrinthine legalisms into a form suitable for public consumption.

Alternatively, the Court may have decided to give up on its recent effort to limit the Commerce Power. Maybe the line drawing it undertook in Lopez and Morrison is not worth the trouble, and one member of the majority from those two cases is willing to join the Justices who would re-introduce the simplicity of completely deferring to Congress about what "substantially affects interstate commerce" and thus falls within the Commerce Power.

Or maybe the Court will put all homegrown marijuana outside of the reach of the federal government, and we can all start tending our own little marijuana plants on our windowsills. I wonder how many people who never consider buying illegal marijuana would happily pursue the option of growing their own. A lot, I think. It's hard to imagine how much America would change if the Court made that little move -- one that is quite justifiable as a matter of constitutional interpretation.

We’ll find out soon enough.

UPDATE: Just to clarify on a point brought up by a commenter. If federal law for homegrowing home users were held unconstitutional, there would still be the layers of state and local law to deal with. We'd get a chance to see what the states would do in this newly cleared field of regulation. Some might choose to ban all possession, some would legalize only the medical use, but I think some would permit recreational uses. It would be quite interesting to see the states, those laboratories of democracy, "experiment with drugs."

34 comments:

...it is very hard to explain the Wickard concept in a way that will satisfy the general public, which finds it so easy to sympathize with the suffering cancer patients on the other side. The Court is just hung up crafting and recrafting its labyrinthine legalisms into a form suitable for public consumption.

Ahh, this is the kind of thing that makes me glad I live in a democracy.

But I don't understand why the Court's rationalizing...errr, I mean reasoning...should be so difficult. I'm sure the appropriate language is right there in black and white in the Constitution, in the Penumbral Emanations section.

Abraham: You are right that state law would still exist, and we'd still need to see how small amount possession is dealt with in any given state. Re D.C.: that's the one place Congress would have the power to regulate, since it has a separate basis for regulating.

In the old days, we snuck around, smoked, bought, sold and grew. If you were careless or unlucky you got busted. And we laughed at our parents for being so uncool. Now our generation wants to hide behind sympathy for cancer victims and legal mumbo jumbo to avoid mingling with the criminal underclass and so we can sit in our living rooms and smoke pot while watching DVDs or checking our 401(k) accounts. Who's uncool now?

Actually, a large part of our generation wanted and still wants it to be made legal - not unlike our grandparents' generation, a large enough number of whom wanted their recreational drug of choice, alcohol, to be made legal after having it prohibited by the federal gov. Perhaps our grandchildren or their children will face similar prohibitions of other substances and wonder, while passing the reefer, what the big deal was.

In Roe v. Wade, the Supreme Court ruled that killing a baby is OK because if a doctor recommends it, why, shucks, that's medical privacy.It's no government's business, the justices agreed, what transpires between a doctor and the patient.Except for the "killing a baby" part, that is -- or seems -- perfectly logical and reasonable and, not always the same thing, legal.So I offer this monkey wrench for the wheels of "justice": If a doctor recommends marijuana for, say, glaucoma or, maybe, tremors or, even, emotional distress, then why is that not also "medical privacy"?I mean, forget that smoking marijuana is less dangerous -- to all concerned -- than chopping up a fetus; forget that marijuana is less dangerous than alcohol or tobacco, both of which are legal -- and highly taxed.What about medical privacy?

Some 35 years ago, a friend asked my father if he would use marijuana. His reply was that he would if it were legal, but since he was an attorney, he really couldn't.

It turns out that he spent the last year of WWII posted in a small village in China. He brought back about a half dozen pipes, including one silver water pipe with his name (or really, his father's name) inscribed on it in Chinese. So, we have always suspected that he tried it then. But the personal cost, at least in the 1960s, was too high for him to risk it. Besides, he was one of those attorneys for whom the law is the law, and as officers of the court, attorneys should be the last to violate such.

I quit buying marijuana on my 21st birthday, and pretty much gave it up for good for a security clearance in the mid-1980s.

But if it were totally legal, I probably would do it occasionally. Its not, so I don't.

Never think though that marijuana is benign. It is not. Few, if any drugs are totally benign. It is just probably not as bad as many others we use, including alcohol.

In particular, it seems that over an extended period of time, say at least 20 years, of constant use, I often find:- substantially increased sensitivity to the environment, whether in the form of oders or even substances you get on your skin.- it seems to turn borderline OC into full blown OCD. If you don't have the tendancy, then this shouldn't be a problem. Worse, these borderline OCD people seem to have a susceptability to getting hooked on marijuana.- apparently, combining marijuana with smoking tobacco substantially increases one's odds of lung cancer.

Of course, if I were already dying of cancer, none of this would mean anything to me.

I really don't see your point here. Either there is a commerce clause power that reaches to home use or there isn't. I don't think the home user's constitutional case turns on the moral considerations as a legal matter, however much sympathy may have been used for political, rhetorical, and persuasive reasons especially as part of the public case.

If there is a persuasive case that (a) Wickard is wrong or, as Prof. Barnett argued, (b) Wickard is wrongly construed to be a case about home use as the term is employed here, then that means regulating marijuana (or "marihuana" as Justice O'Connor's opinions charmingly spell it) is up to the states. Following Lopez, we would say that's a police power, and there is no general federal police power.

Where is the problem in that?

Great blog, by the way. And, incidentally, I suspect you are right about how the Court will come down. But I don't see how it can rest a federal power here on the Article 1 power to stop recreational, as opposed to medical use.

T.More: Good question. My point is this. I don't think that the Court will be willing to say that all the homegrowing home-users who have been punished under the Controlled Substances Act over the years have been wrongly punished. Therefore, unless there's a reason for saying the Commerce Power reaches regular home users but not medical home user, the Court is likely to find the Commerce Power reaches all homegrowing home users. I agree with you, as I wrote in my original post, that the sympathy for the medical users has no place in the constitutional analysis.

Steven Aslett: You write "I don't understand why you think there's no principled distinction to be drawn between medical users who grown their own marijuana intrastate with no intent to sell or buy it and those who will use the state law to buy interstate marijuana from illicit dealers." I wasn't writing about that distinction.

Prof. Althouse, I don't understand why you think there's no principled distinction to be drawn between medical users who grown their own marijuana intrastate with no intent to sell or buy it and those who will use the state law to buy interstate marijuana from illicit dealers. In fact, I don't see how the distinction can be clearer. On the one hand we have individuals consuming and using the drug entirely intrastate in a noncommercial activity; in the other hand, we have individuals engaged in a commercial activity (buying drugs off the street) which have probably traveled in interstate commerce. One's intrastate noncommercial activity, the other's interstate commercial activity. It sounds like you're sympathetic to the government's argument that it's going to be very difficult to determine who is actually growing their marijuana intrastate and who is illicitly buying it. To that, I say, so what? This isn't the first federal law to present enforcement problems. Take mp3 sharing for example. How does the government know that I didn't download some of my songs illegally? Sure, I could have ripped them all from my CDs, and I can probably document most of them, but I've doubtlessly sold some of the CDs after having ripped them. Or how about 7 U.S.C. 2156, which prohibits animal fights with animals transported in interstate commerce? It's going to be difficult for the government to prove that my rooster wasn't born and raised in Louisiana (where cockfighting is legal) and not brought over in my truck from Mississippi. But that doesn't mean there isn't a principled distinction between intrastate roosters and roosters that have traveled interstate. http://www4.law.cornell.edu/uscode/html/uscode07/usc_sec_07_00002156----000-.html Rather, the odd distinction results from the language of the commerce clause itself--"among the several States." Textually, we shouldn't even be considering intrastate activities that substantially affect commerce. The only reason we do is because of Supreme Court precedent. I can understand your desire for the Court to defer to Congress a little more when it makes findings on the effects of an intrastate activity on interstate commerce, but look at the findings Congress actually made in this case. http://straylight.law.cornell.edu/uscode/html/uscode21/usc_sec_21_00000801----000-.html The findings in Morrison were stronger than these! These don't even allege an attenuated causal link, they mostly just harp about how gosh-darn hard it is to distinguish between interstate drugs and intrastate drugs and how most drugs have travelled interstate. You can make those claims about plenty of federal laws! Imagine if this rationale were good enough. Then Congress truly could regulate anything under the Commerce Clause. Intrastate gardening (most tomato seeds travel in interstate commerce and it's difficult to tell the difference between ones that have and haven't; local distribution and possession contributes to interstate traffic in tomato seeds; federal control over all tomato seeds is essential to effectively control interstate traffic in tomato seeds, etc.), intrastate home building (most wood and bricks has traveled in interstate commerce, etc.), intrastate cruelty to animals (plenty of pets have traveled in interstate commerce, etc.), and so on. Who needs a jurisdictional hook limiting the law's scope under these circumstances? Personally, I think if the Court sides for the government, it will all but effectively overturn Lopez and Morrison, and that will be damn sad. In Raich we have an 1) intrastate noncommercial activity, 2) with tenuous, nonaggregable effects on interstate commerce, 3) with no jurisdictional hook, and 4) with congressional findings as weak as you can imagine. It clearly fails all elements of the Morrison test. The CSA is unconstitutional. The only way I can see the government winning here is if the Court buys its argument that Wickard allows regulation of intrastate activity if it is "reasonably necessary to achieve the effective regulation of a market that is interstate in nature." Pray tell, what market in the U.S. in 2005 is not interstate in nature? Such an expansive reading of Wickard would allow regulation of nearly everything. That can't possibly be what the framers intended, that can't be squared with the text of the Commerce Clause, that can't be squared with principles of federalism and, in my mind, that can't be squared with the Court's precedents in Morrison and Lopez. If the Court does rule that way, it won't be the end of the world (well, maybe it will be for people like Angel Raich). It'll just be pre-1995 again. And folks like myself will need to wait a while until a Supreme Court with guts finally starts limiting the federal government's power under the Commerce Clause.

Thanks for the response, professor. (Sorry for cluttering up your comments section with the repost, especially since the repost formatting came out wretched.)

Then I'm confused as to how to read your post. Why is it necessary to question the distinction between medical users and nonmedical users? The state of California apparently found the distinction between those with medical needs and those with no medical needs compelling. If the CSA is unconstitutional, then the states can regulate marijuana possession however they want. They can ban it entirely; allow medical possession only; or allow possession for both medical and recretaional users.

Perhaps the distinction doesn't make sense depending on one's particular views on the ill-effects or lack thereof of marijuana use. There are arguments to be made on both sides. But isn't this a policy question rather than a constitutional one?

This whole scheme of regulation is based on the idea that drugs cause addiction.

Suppose "addiction" is a symptom.

i.e. people in chronic pain chronically take pain relievers. A truly novel idea.

There is considerable science to back up that idea and as more research is done in the area more confirmations.

Now the fact that medical science currently does not indicate the banned drugs is not unusual. Take the case of fybromyalgia. For a long time drug users with this problem were considered "addicts". We now know better.

As we learn more about PTSD (the root cause of a lot of "addiction") the drug laws will fall into disrepute.

Any chance that SCOTUS is taking so long because they're trying to find a way that they can figure out how to rationalize a decision in favor of home grown, not for sale marijuana in the Raich case, but against home built, not for sale machine guns in U.S. v. Stewart?

Calico Cat: If federalism gets a grip on the Court and it does what you say, it should also decide Cutter (the Religious Land Use and Institutionalized Persons case) to deprive Congress of the Spending Power move you suggest.

Ann - I don't see why the federalism decision should be correlated with the Cutter decision. From an originalist perspective, Calico Cat is right: the Court should strike down federal home-grown marijuana regulation while accepting Congress's clear authority to use its appropriations power to influence state lawmaking.

To block Congress from using its appropriations authority would make the Court appear to be dictating a policy outcome, rather than enforcing the rules for delegation of authority from the people to lawmaking bodies.

Paul: Think about how the feds rake money out of the states then send it back with conditions attached, conditions that push some states to give up their own policies and bestow a windfall on states that already like the federal policy and you should be able to work out the federalism problem. Despite what Scalia might prefer, constitutional law is not done purely with originalism. There is some pragmatic analysis of how things actually work. Even as a matter of originalism, do you really think the Spending Power would have been understood in its day to authorize the manipulation of the states that is done in the name of spending today?

Ann - I would think a plausible compromise on marijuana is the following:1) Federal laws are restricted to instances of interstate commerce - defined reasonably;2) However, Congress allows federal DEA/law enforcement officers to be deputized by the states so that they can enforce state laws within state borders;3) Congress continues to fund federal law enforcement (of state and federal law) much as it is now (of federal law alone); 4) Congress conditions use of federal resources to enforce state laws upon states bringing their laws within some degree of conformity to federal law.

I don't know what sort of limits upon Congress's power to condition appropriations you are thinking of, and whether yours would implicate (4), but it seems to me that such limits would open a new constitutional can of worms.

Paul, (2) doesn't apply. In CA, we would simply like the Feds to respect the medical marijuana law that we, the voters, passed--instead of coming in here and busting people for medical use that is supposed to be legal.

I'm wondering whether SCOTUS would find that masturbation is controllable under the Commerce Clause, since if we weren't masturbating we'd be hiring hookers/gigolos in the marketplace.

I simply don't understand any distinction between medical and recreational users that is relevant to the constitutional point. (I realize medical patients are more sympathetic.) Both groups must be treated the same under the Constitution.

It would be much the same as the difference between medical and recreational users of dilaudid, I would think. Has anyone successfully challenged a controlled substance conviction on the basis that others were allowed to use it medically?

I simply don't understand any distinction between medical and recreational users that is relevant to the constitutional point. (I realize medical patients are more sympathetic.) Both groups must be treated the same under the Constitution.

It would be much the same as the difference between medical and recreational users of dilaudid, I would think. Has anyone successfully challenged a controlled substance conviction on the basis that others were allowed to use it medically?

Kevin: Once the feds have control of the area, they can regulate. The drug laws approve of some uses and not others. Where is the constitutional problem? There is nothing for the states to say in the matter disagreeing with federal policy. The only hope would be some sort of individual right to one's preferred medical treatment (but not to general liberty).

The federal government has no right to interfere with medpot patients growing marijuana for their own use. Interstate commerce does not enter into the equation. Commerce itself has nothing to do with it, except for the concerns of the large pharmaceutical companies, who would stand to lose billions, if medical marijuana were to be made legal as a painkiller across the board. Who would continue buying their synthetic medications then?

As one of the characters said in a cheap, made-for-TV movie tonight, “it’s all business.” The war in Iraq has to do with the oil business, and the prohibition of marijuana as a safe and useful drug has to do with Big Pharma.

Aside from business considerations, the reason marijuana was classified as a Schedule One drug under the Controlled Substances Act of 1970 is because millions of young people were smoking pot and getting anti-war ideas. Don’t forget, we had a paranoid President named Richard Nixon, who wanted the bureaucrats who worked for him to paint marijuana with the blackest brush possible. More dangerous than cocaine? How can any sane person take such nonsense seriously?

Marijuana has been used in healing for centuries. 2,000 year old Chinese texts mention its use to treat pain, digestive disorders, inflammation of the joints, and malaria. Ayurveda, an ancient Indian form of medicine, has used marijuana as one of the chief drugs in its arsenal since the first century, AD.

In his excellent book, “Is Marijuana the Right Medicine for You?” Bill Zimmerman, Ph.D. quotes a grandmother of four named Stormy Ray. A chronic-progressive multiple sclerosis patient, Ms. Ray is very eloquent:

“So now I find myself in a rather frustrating position. As Marinol becomes less and less effective, my need for legal and accessible marijuana becomes clear and urgent. I know from my past experience, that it works. Should I have to curl back up in pain because it is illegal? I don’t want to go back to the way I was, but I’m not a criminal, and I shouldn’t have to be forced into acting like one to be well. No one should have to risk getting arrested to get their medicine.”

“I don’t think it would be that way if people had better understanding. Marijuana in its natural form is one of the safest, most therapeutic substances in the world. We’re not talking a Band-Aid. Marijuana works because it allows those vital messages to go through to different parts of your body—the parts that the disease seems to take away from you. In this position, people like me find it becomes a matter of doing what any sane person would do. We use marijuana to be well and there isn’t anything criminal about that.”

As a Canadian legal medpot patient, I say “Amen” to that. I would like to direct all medpot patients living in jurisdictions where it is legal to a very helpful website. Advanced Nutrients Medical will not only dispense excellent advice on how to grow your own, but it also distributes wonderful products that make sure that the medicine you grow is robust and full of healing properties.

The funny thing about justifying prosecution of Raich based on the Wickard aggregate concept, is that, in the Wickard case, the government was trying to help the other wheat farmers. They were trying to keep demand for wheat up.

When applying this concept to the Raich case, the marijuana is the wheat, and who are the other wheat farmers? Illegal drug traffickers.

In essence, the decision to allow federal law to interfere with Raich was based on the fact that her personal cultivation would lower sales of marijuana.

This is a clear contradiction, because the agenda of the marijuana part of the CSA, lowering all marijuana activity, was clearly justified by an opposite agenda, keeping marijuana demand up.

Therefore, should they really be able to justify the federal interference in states' rights by the Wickard case?